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 Subj:
RESPONSIBILITY OF A-E CONTRACTOR
negligent performance of any of the services furnished under the
c o n t r a c t . An A-E contractor's failure to review shop drawings
w i t h i n the time period specified in the contract could be
c o n s i d e r e d negligent performance, if the A-E did not exercise
such reasonable diligence as one in that profession would
o r d i n a r i l y exercise under similar circumstances. A c c o r d i n g l y ,
t h e contract for PCAS should clearly identify delivery dates for
a l l work required. The government contract administer should
m o n i t o r delivery dates and take appropriate action if a
completion date is not complied with. I f the contract does not
set a time for review of shop drawings, industry standards would
be used in making a negligence determination.
c . C o n t r a c t o r ' s tardiness, e v e n if it does not raise to the
l e v e l of negligence c o n s t i t u t e s a violation of a material
e l e m e n t of the contract, i.e., delivery. Under general contract
l a w principles, the contractor would be liable for any damages
which were a foreseeable consequence of its contract breach. The
f a c t that the government will incur delay costs on a related
c o n s t r u c t i o n contract as a result of the A-E's untimely
performance of PCAS is clearly foreseeable (particularly where
t h e contract contains language to that affect). Subparagraph (c)
of reference (b) makes clear that the rights and remedies of the
government provided for in the contract are in addition to any
other rights or remedies provided by law. T h e r e f o r e , reference
(b) would appear to provide an ample basis for seeking recovery
for any damages suffered by the government as a result of the
A-E's negligent or untimely performance of PCAS.
3. The method for recovering such damages is for the contracting
o f f i c e r to file a claim (or counterclaim if the contractor has
f i l e d a claim) against the contractor under the dispute clause of
t h e contract; F A R Clause 52.233-l(d)(l). The contractor would
have an opportunity to respond to the claim and the contracting
o f f i c e r would then issue a final decision. If dissatisfied with
t h e contracting officer's final decision,' the contractor could
file an appeal with either the Armed Services Board of Contract
Appeals (ASBCA) or the U.S. Claims Court. WESTNAVFACENGCOM have
recovered damages for delay against a number of A-E contractors.
In each case, t h e contracting officer asserted a claim against
t h e A-E contractor citing subpart (c) of reference (b) as the
b a s i s for the claim. T o date, contractor's have not challenged
t h e i r position.
4 . This guidance should be provided to all appropriate personnel
w i t h i n your contracting and contract administration offices.
This has been prepared in coordination with the NAVFACENGCOM
Counsel. The point of contact on this matter is Mr. Vincent M.
Spaulding, Code 022B, AV 221-7654 or Commercial (202) 325-7654.
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